TITLE:  Family Entertainment Services, Inc., d/b/a/ IMC, B-291997.4, June 10, 2004
BNUMBER:  B-291997.4
DATE:  June 10, 2004
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   DOCUMENT FOR PUBLIC RELEASE                                                
                                                                              
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision

    

   Matter of:   Family Entertainment Services, Inc., d/b/a/ IMC

    

   File:            B-291997.4

    

   Date:              June 10, 2004

    

   Timothy E. Heffernan, Esq., Watt, Tieder, Hoffar & Fitzgerald, for the
protester.

   Maj. Robert B. Neill, Department of the Army, for the agency.

   Sharon L. Larkin, Esq., and Glenn G. Wolcott, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

    

   Agency*s evaluation of awardee*s past performance and key personnel is
reasonable, where evaluation is consistent with the solicitation*s
evaluation criteria and is supported by the record.

   DECISION

    

   Family Entertainment Services, Inc., d/b/a IMC (IMC) protests the award of
a contract to Terry Land Development (TLD) under request for proposals
(RFP) No. DABK09-03-R-0004, issued by the Department of the Army for
grounds maintenance services for the Fort Campbell, Kentucky military
reservation. IMC challenges the agency*s evaluation of TLD*s past
performance and key personnel.
    

   We deny the protest.

    

   The RFP, set aside for Historically Underutilized Business Zone (HUBZone)
small business concerns, contemplated the use of commercial item
procedures to award a fixed-price contract for grounds maintenance
services.  RFP at 25, 26, 33.  These services included such items as
mowing, edging, trimming, removing debris, and repairing damaged areas for
6,999 acres of improved grounds, of which 4,760 acres is grass.  RFP at
39.  The RFP provided for a 1-year base period with four 1‑year
options, and five additional 1-year options based on award terms.  Within
each 1‑year period, the RFP contemplated a mowing season of
8 months.  RFP at 28, 39.

    

   The RFP provided for a best-value award based on quality and price, with
quality being *slightly more important than* price.  The RFP stated,
however, that *[t]he importance of the price in the selection will
increase as the quality differences between proposals decreases.*  RFP at
88.

    

   The RFP stated that the quality factor consisted of two subfactors--past
performance and technical/management--with past performance being
*slightly more important than* technical/management.  The past performance
subfactor consisted of four equally weighted sub-subfactors:  quality of
products/services, scheduling, business relations, and safety/experience
modification.  The technical/management subfactor consisted of four
equally weighted sub-subfactors:  technical excellence/experience,
management capabilities, key personnel qualifications, and subcontractor
data.  RFP at 88-89. 

    

   For the past performance subfactor, the RFP required that each offeror
*identify and submit a separate record for all Federal, state and local
government and private contracts that are similar in dollar value and
complexity to the work required in this solicitation within the past three
(3) years.*  RFP amend. 1, at 84.  For the technical/management subfactor,
among other things, contractors were to identify and provide the resumes
for key personnel, which the RFP defined as *those Contractor personnel
considered to be essential to the performance of the contract (Program
Manager and Quality Control Officer),* and letters of intent for proposed
subcontractors.  The RFP cautioned that the *failure to provide a valid
written letter of intent between the prime contractor and the
subcontractors and/or provide resumes for key personnel in the proposal
may invalidate the experience/credentials and may not be used as part of
the evaluation of the proposal.*  RFP amend. 1, at 86‑87.         

    

   The Army received 15 proposals in response to the RFP and, after initial
evaluation, found 7 (including IMC*s and TLD*s proposals) to be in the
competitive range.  The agency rated IMC*s and TLD*s initial proposals as
follows:

    

   +------------------------------------------------------------------------+
|    |Past Performance|Technical/Management|OverallQuality|Price         |
|----+----------------+--------------------+--------------+--------------|
|IMC |Excellent       |Satisfactory        |Good          |$12,852,555.52|
|----+----------------+--------------------+--------------+--------------|
|TLD |Very Good       |Satisfactory        |Good          |$12,494,488.00|
+------------------------------------------------------------------------+

    

   AR, Tab 12, Pre-Negotiation Objective Memorandum (POM), at 17.

    

   The Army held discussions with each of the offerors in the competitive
range concerning deficiencies and weaknesses in their proposals, and
invited offerors to submit revised proposals.  After evaluating revised
proposals, the Army reduced the competitive range to three offerors,
including IMC and TLD.  The Army held another round of discussions with
the offerors in the competitive range and again sought revised proposals. 
After reviewing these revised proposals, the Army determined that further
discussions were not warranted, and sought final proposal revisions (FPR)
from the offerors.  The Army*s evaluation ratings for IMC*s and TLD*s FPRs
are reflected below:

    

   +------------------------------------------------------------------------+
|   |Past Performance|Technical/Management|Overall Quality|Price         |
|---+----------------+--------------------+---------------+--------------|
|IMC|Excellent       |Satisfactory        |Good           |$12,995,906.06|
|---+----------------+--------------------+---------------+--------------|
|TLD|Very Good       |Good                |Good           |$11,972,372.00|
+------------------------------------------------------------------------+

    

   AR, Tab 29, Post/Price Negotiation Memorandum (PNM), at 12-13.

    

   Under the past performance subfactor, the Army rated IMC*s proposal
excellent, based on IMC*s performance under a 2-year grounds maintenance
contract that IMC is currently performing at Fort Campbell, Kentucky,
valued at *$2 million or greater.*  Contracting Officer*s Statement at 5. 
The Army noted that this was the only contract that IMC identified for
past performance, but also noted that the customer rated IMC*s performance
as excellent.  AR, Tab 29, PNM, at 12, 13-14; see also Tab 12,
POM, at 15. 

    

   The Army gave TLD*s proposal a lower past performance rating of very
good.  The Army noted that TLD identified only one 15-year mowing contract
valued at $292,856 covering 1500 acres of land, but recognized that TLD
identified 10 other contracts for landscape, utilities installation, and
site construction ranging in value from $146,092 to $3.2 million.  The
Army found these other contracts to be *more complex [in] nature than
grounds maintenance* and concluded that they were an indicator of
successful performance here, since grounds maintenance work *is not
considered to be highly technical.*  Contracting Officer*s Statement at
6.  Based on customer surveys received for four of the identified
contracts that the Army found to be of *similar dollar value and
complexity* to the RFP*s required effort, where the customers rated TLD*s
performance from very good to excellent, the Army rated TLD*s proposal
very good under the past performance subfactor.  AR, Tab 29, PNM, at 10,
13; see also Tab 12, POM at 12. 

    

   Under the technical/management subfactor, the Army rated IMC*s proposal
satisfactory because, although it found that IMC*s proposal *possesses
adequate quality,* it noted several disadvantages.  For example, it found
that IMC*s proposal had demonstrated management skills in performing only
*one contract for the past several years* (the grounds maintenance
contract discussed above), and failed to *show that key personnel were
abreast on rules, regulations, and guidelines as it relates to grounds
maintenance.*  The Army also found that IMC*s management structure was
*quite confusing,* noting in particular that the proposal*s *write-up did
not coincide with the organization chart* and that there were several
ambiguities between the two documents that *made it difficult to follow
[IMC*s] management structure as well as the responsibilities of the key
personnel.*  AR, Tab 29, PNM, at 13. 

    

   TLD*s proposal received a higher technical/management rating (good) based
on the fact that its proposal received higher ratings than IMC*s for two
of four technical/management subfactors.[1]  In support of the higher
ratings, the Army noted that TLD*s proposal *clearly has an advantage over
the other offerors* under the *[m]anagement category* based on TLD*s
*extensive experience managing multi-million dollar contracts that are . .
. more complex than a ground[s] maintenance contract.*  The Army also
found that TLD*s personnel were *highly qualified* given their extensive
experience managing contracts that *far exceeds the experience necessary
to manage a grounds maintenance contract,* although the agency recognized
that TLD*s *experience in grounds maintenance is limited.*   The Army also
found advantageous TLD*s ability to acquire needed resources to fulfill
the requirement.  Id. at 12.

    

   In performing its best-value analysis, the Army determined that there was
*very little difference in the overall quality* of TLD*s and IMC*s
proposals.  In this regard, it noted that TLD demonstrated a *stronger
ability to manage a contract of this nature and . . . showed extensive
experience on contracts of a more complex nature than grounds
maintenance,* whereas IMC*s management was limited to only one grounds
maintenance contract.  Id. at 15.  It also noted that IMC provided past
performance documentation for only one contract, whereas TLD provided past
performance documentation for several contracts and received high past
performance ratings under the four customer surveys received.  Although
the Army recognized that IMC*s one prior contract was a grounds
maintenance contract and that TLD*s experience in that area was *limited,*
the agency found that TLD*s lesser experience was offset by its higher
technical/management ratings and very good past performance.  Thus, both
offerors* proposals, according to the agency, were deserving of an overall
*good* quality rating.  Given that the Army found both proposals deserving
of essentially equal ratings under the quality factor, it elected to award
to the lower‑priced offeror, finding that IMC*s higher past
performance rating was not worth the additional price.  Id. at 13-15. 
Award was made to TLD and this protest followed.

    

   IMC first protests the Army*s evaluation of TLD*s past performance.  It
contends that that the agency abandoned its evaluation criteria by
considering TLD*s contracts that were not for grounds maintenance work. 
It asserts that TLD*s proposal should have received either a lower, or
*unknown,* past performance rating, since the offeror lacked experience
performing grounds maintenance work of *similar scope* to the required
effort.  The Army responds that the RFP required evaluation of contracts
of *similar dollar size and complexity,* not *similar scope,* and that it
evaluated TLD*s past performance reasonably and in accordance with these
criteria.

    

   The evaluation of past performance, including the agency*s determination
of the relevance and scope of the offeror*s performance history to be
considered, is a matter of agency discretion, which we will not find
improper unless unreasonable, inconsistent with the solicitation criteria,
or undocumented.  Acepex Mgmt. Corp., B‑283080 et al., Oct. 4, 1999,
99-2 CPD P: 77 at 3, 5.

        

   We do not agree with IMC that the Army abandoned its evaluation criteria
by considering contracts other than grounds maintenance contracts to be
relevant.  The RFP stated that experience would be evaluated for *similar
dollar value and complexity,* which reasonably includes performance of
other types of work, as was evaluated here.[2]  The record shows that,
consistent with the RFP, the Army considered the dollar value and
complexity of TLD*s contracts and found several to be of similar dollar
value and even more complex than was required under the RFP.  Successful
performance under these contracts demonstrated to the Army that TLD was
*capable of mobilizing, organizing, and managing a grounds maintenance
contract* of this size.  As the agency explained, *mowing grass . . . is
not a difficult task; however, the ability to manage a team of individuals
in a organized fashion that results in standards being met in a timely
manner for over 4700 acres of grass requires good management,
organizational, and quality control skills.*  Contracting Officer*s
Statement at 6.  Given that TLD*s customers rated its performance from
very good to excellent on these more complex projects, we find that the
Army*s assessment of a very good rating to TLD*s performance under the
past performance subfactor was reasonable.[3]

    

   IMC next complains that TLD *misrepresented* the status of one of its
proposed key personnel, and that TLD*s proposal should have been
downgraded under the technical/management subfactor for failing to submit
a resume for that individual.  In this regard, the record shows that both
IMC*s and TLD*s proposals offered the same individual to perform as key
personnel.[4]  In short, IMC asserts that, because the individual at issue
was committed to IMC as its project manger, he could not also be committed
to TLD.  We disagree.  

    

   As with past performance, we review challenges to an agency*s technical
evaluation only to determine whether the agency acted reasonably and in
accord with the solicitation*s evaluation criteria and applicable
procurement statutes and regulations.  PharmChem, Inc., B-291725.3 et al.,
July 22, 2003, 2003 CPD P: 148 at 3. 

    

   Here, the record shows that TLD unambiguously disclosed to the agency that
TLD could not provide the proposed job superintendent*s resume because of
that individual*s commitment to its current employer, IMC.  AR, Tab 7,
TLD*s Initial Proposal, at 156.  Nonetheless, TLD*s proposal included a
letter of intent, signed by the individual in question, stating that
*based on the successful bid [of TLD under this solicitation],* this
individual *will assume [the] position as job superintendent.*  Id at
162.  The record further shows that the Army recognized that TLD*s
proposed job superintendent was currently managing the grounds maintenance
work for IMC and that he had also been proposed as IMC*s project manager. 
AR, Tab 9, TLD*s Overall Technical/Management Rating, at 1-2; Tab 8, IMC*s
Overall Technical/Management Rating, at 1.  On this record, there is no
merit to IMC*s assertion that TLD*s proposal misrepresented the
individual*s status. 

    

   We similarly reject IMC*s assertion that the agency should have downgraded
TLD*s proposal for failing to submit a resume for the individual at
issue.  The record here indicates that the individual intended to work for
the winning contractor, regardless of whether it was IMC or TLD.  In this
regard, the RFP did not require exclusive commitments from key personnel
and, further, provided that failure to submit the key personnel*s resumes
*may*--but was not required to--invalidate an offeror*s experience and
credentials.  RFP amend. 1, at 86-87.  It is also clear that the agency
had in its possession the resume of the individual at issue.  We note that
IMC does not and, in light of its own proposal of this individual, cannot
assert that the individual is unqualified to function as key personnel. 
In evaluating proposals that offer the same key personnel, it its obvious
that the experience and qualifications of such personnel must be evaluated
the same for each offeror.  See The Arora Group, B-293102, Feb. 2, 2004,
2004 CPD P: ___ at 3-4.  Accordingly, on the record here, we find no error
in the agency*s consideration of the experience and qualifications of the
individual at issue under both TLD*s and IMC*s proposals.

    

   The protest is denied.[5]

    

   Anthony H. Gamboa

   General Counsel

    

    

   ------------------------

   [1] TLD*s proposal received good ratings for technical
excellence/experience and management capabilities, and satisfactory
ratings for key personnel qualifications and subcontractor data, whereas
IMC received satisfactory ratings for all four sub‑subfactors.  AR,
Tab 29, PNM, at 12.

    

   [2] Citing the RFP*s *instructions to offerors* which requested that
offerors identify past performance for the *same or similar items,* IMC
argues that favorably considering other than grounds maintenance work is
unreasonable.  However, instructions to offerors are not the same as
evaluation criteria; rather than establishing minimum evaluation
standards, the instructions only provide guidance to assist offerors in
preparing and organizing proposals.  All Phase Envtl., Inc.,
B‑292919.2 et al., Feb. 4, 2004, 2004 CPD P: __ at 4.  The
information required by the instructions need not correspond to the
evaluation criteria.  Id.; JW Assocs., Inc., B‑275209.3, July 22,
1997, 97-2 CPD P: 27 at 3-4.  In any event, the record shows that the Army
recognized that TLD had more limited grounds maintenance experience and
took this into account when selecting TLD for award. 

   [3] Additionally, we find no merit to IMC*s arguments that the record
(including TLD*s proposal information) is inadequate or that the agency
evaluated offerors unequally under the past performance subfactor. 

   [4] The individual at issue has been the incumbent foreman for this
contract for the past six years.  IMC*s proposal referred to him as the
*project manager,* and included his resume; TLD*s proposal referred to him
as the *job superintendent,* and included a letter of commitment, but
advised the agency that, *because of previous obligations to his present
employer, he is unable to provide us with his resume.*  AR, Tab 7, TLD
Initial Proposal, at 156.  The record is clear that performance of this
individual was considered *essential* by both offerors.  Contracting
Officer*s Statement at 8.  Accordingly, we reject any assertion that TLD*s
use of a differing job title was a proper consideration in determining
whether submission of a resume was required.     

   [5] IMC*s remaining protest challenges to the Army*s evaluation of its and
TLD*s proposals under the technical/management subfactor, and best-value
award determination were abandoned when IMC failed to address the
arguments asserted by the Army in the agency report.  TN-KY Contractors,
B-291997.2, May 5, 2003, 2003 CPD P: 91 at 3 n.2.